Sunday, 8 September 2013

Is Sex Selective Abortion Illegal ?

The Crown Prosecution Service has issued a Statement on Abortion Related Case which has aroused considerable controversy.  In simple terms it concerns a expose investigation by the Daily Telegraph Newspaper which demonstrated that some Doctors would perform Abortions where the only reason was because of the sex of the Unborn Child.  The usual assumption is that the unborn child is female and that is the reason for the Abortion, sadly such Gendercide is now common in some parts of the world where it is causing dangerously unbalanced Male-Female ratios.

The facts were reported to the CPS which in its unconvincing statement says that 
 "The Abortion Act 1967 allows for an abortion in a limited range of circumstances but not purely on the basis of not wanting a child of a specific gender."
but then adds that it is "not in the public interest" to  bring prosecutions in this case.  That decision has not unreasonably aroused controversy since it seems to be saying that Doctors can get away with breaking the law.

I however have a different perspective since right from the start of this controversy I have taken the view that Sex Selective Abortion is not illegal.  In my opinion as a former Crown Prosecutor the CPS knew that if it brought a Prosecution it would probably lose the case.

I want to make it clear that in saying this I am not speaking as a supporter of Sex Selective Abortion or indeed any other form of Abortion because all forms of Abortion are morally repugnant and involve  the cold blooding killing of an innocent unborn child.  However I cannot see why sex selective Abortion should be considered more morally repugnant than any other form of Abortion and speaking purely as a lawyer and in the terms under which our law permits Abortion I cannot see on what basis Sex Selective Abortion is illegal.  

The Abortion Act 1967 s1 sets out the terms under which Abortion is legal in Britain 

1(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—
(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or
(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
(2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) or (b) of subsection (1) of this section, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.

The main clause under which the majority of Abortions are carried out is s1(1)(a) and is used for a wide variety of Abortions for "social" reasons.  It is, sadly, commonplace for Abortions to be carried out simply because the sexual relationship has finished, or was no more than a "one night stand", or because the woman has simply changed her mind and  does not want a child, or because it may cause "inconvenience" to an existing relationship or even cause difficulties at work.  I am reliably informed that where female students find themselves pregnant they are routinely pushed by their University in the direction of either having an Abortion or abandoning their University course.  

All of these "reasons" for an Abortion are accommodated under the provisions of s1(1)(a) so why should a woman not be similarly accommodated if her reason for wanting an Abortion is the sex of the Child ?  After all ethical guidance from the British Medical Association states that a Doctor (my emphasis) 
"must not imply or express disapproval of the patient’s lifestyle, choices or beliefs"
why therefore should a womans choice regarding the desired sex of her baby be disapproved of if any other reason for choosing an Abortion cannot be disapproved of ?

The newspaper discussions on sex selective Abortion have assumed that it is accepted by Medical experts that such an Abortion is clearly illegal but that is not the view of the British Medical Association which in a booklet The law and ethics of abortion says (my emphasis)

1.7 Abortion on grounds of fetal sex
Fetal sex is not one of the criteria for abortion listed in the Abortion Act of 1967 and therefore termination on this ground alone has been challenged as outwith the law. There may be circumstances, however, in which termination of pregnancy on grounds of fetal sex would be lawful. It has been suggested that if two doctors, acting in good faith, formed the opinion that the pregnant woman's health or that of her existing children would be put at greater risk than if she terminated the pregnancy, the abortion would be arguably lawful under section 1(1)(a) of the Abortion Act. The Association believes that it is normally unethical to terminate a pregnancy on the grounds of fetal sex alone except in cases of severe x-linked disorders. The pregnant woman's views about the effect of the sex of the fetus on her situation and on her existing children should nevertheless be carefully considered. In some circumstances doctors may come to the conclusion that the effects are so severe as to provide ethical justification for a termination. They should be prepared to justify the decision if it were challenged.

The issue therefore is accepted as not clear from doubt.  Section 1(2) of the Abortion Act may also be particularly relevant as a defence for any Doctor who was charged with conducting a sex selective Abortion (my emphasis)

(2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) or (b) of subsection (1) of this section, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.

Therefore if the woman is in an "environment" where the sex of the baby was relevant for example where there are cultural pressures to have a boy or where there is already one child of a particular sex and the couple either want their next child to be a different sex to their sibling or want it to be of the same sex then an Abortion would be legally justified.

I repeat again I am not defending the practice of Sex Selective Abortion nor am I defending these particular Doctors other than to say that they are morally no worse than most other Doctors performing or authorising Abortions.

My point is not to defend them but rather to explain why they were not prosecuted.  The fact is that any prosecution of these Doctors would have been very problematic and they would probably have been acquited. The CPS, not unreasonably, took a look at the legal, ethical and political complexities involved and decided to make the feeble excuse that prosecution was not in the public interest.  The CPS  should have been franker and admitted that their real reason for not prosecuting was that there was "No realistic prospect of Conviction".  According to the "Code for Crown Prosecutors" that is a perfectly valid reason for not prosecuting but stating the fact publicly would have made it obvious to everyone that the Abortion Act 1967 is a moral and legal mess.  

 My attention was drawn to an excellent legal commentary on the CPS decision by legal blogger, Greg Callus, who argues that the CPS' decision not to prosecute is defensible on the facts. He is approaching it from a slightly different angle to me but I do not disagree with what he has said. Unfortunately I do not know Gregs contact details and so I have not been able to ask whether he has any objections to me linking to him. If you want to get in contact Greg I would be delighted to hear from you

I also have permission from Dr Ellie Lee from the University of Kent to add a link to her interesting article"Sex selection: what Britain’s Abortion Law Really Says" at the Spiked-Online website

1 comment:

Anonymous said...

Hi Neil - thanks for linking to my blogpost. Certainly no objections to you sharing it, and glad that a proper criminal practitioner didn't find any gaping holes in a commercial pupil's interpretation! It's been heartening that, irrespective of people's moral convictions, there's been quite some consensus on the law. Greg Callus